MIME-Version: 1.0
Content-Type: multipart/related; boundary="----=_NextPart_01C612A5.F3AF65E0"
This document is a Single File Web Page, also known as a Web Archive file. If you are seeing this message, your browser or editor doesn't support Web Archive files. Please download a browser that supports Web Archive, such as Microsoft Internet Explorer.
------=_NextPart_01C612A5.F3AF65E0
Content-Location: file:///C:/449AB104/abajournal_spammer_fried.htm
Content-Transfer-Encoding: quoted-printable
Content-Type: text/html; charset="windows-1252"

King County Superior Court Judge Douglas North granted summary judgment on =
Sept.
13 and agreed with the state that Oregon businessman Jason Heckel
violated Washington’s anti-spam law. The decision in this closely watched t=
est
case averts a civil trial that had been set for Monday.

John Mozena, vice president of the Coalition Against Unsolicited Commercial E-mail, applauded the r=
uling.
"This is the first time that just the sending of spam landed someone in
hot water," Mozena says. "That’s an
important precedent to set."

A precedent? Yes. Important?=
The true test will be whether the decision dissuades spammers from sending =
out
bulk, unsolicited e-mail, Mozena concedes.

This case is the first to test Washing=
ton’s
anti-spam law. And while other cases throughout the country have targeted t=
he
content of e-mail messages, Mozena says, "=
This
is the first time a spammer has been taken to task by a government agency f=
or
the mere act of spamming."

The court will decide this fall whethe=
r to
sanction Heckel for up to $500 per violation. <=
span
class=3DSpellE>Heckel plans to appeal regardless of the final judgme=
nt entered.

"What we’re talking about here is=
a
struggle between state control of the Internet and federal control of the
Internet," says Heckel’s lawyer, Dale L.
Crandall of Salem, Ore. Crandall argues that Washington’s law overreaches in
punishing an out-of-state resident whose activities are legal in Oregon.

Washington’s 1998 Unsolicited Commercial Electronic Mail Act doesn’t ban
unsolicited e-mail outright, but the statute makes it illegal to send state
residents e-mail with deceptive subject lines or fake return addresses. It =
also
is illegal there to use a third party’s domain name without permission.

Heckel is alleged to have violated the first two
provisions by sending millions of e-mails with the subject line "Did I=
get
the right email address?" to get recipients to open and read his messa=
ges.
The state also accused Heckel of using an inval=
id
return e-mail address, which made it impossible for recipients to directly
respond to his messages.

Heckel, through his company Natural Instincts, sent t=
he
e-mails advertising the sale of digital business advice titled, "How to
Profit from the Internet." Crandall says Heckel=
span>
distributed the e-mails widely and didn’t specifically target Washington
residents. He claims Washington’s law places an unconstitutional burden on
interstate commerce.

Crandall further argues that, given the
boundless nature of the Internet, it ought to be up to the federal governme=
nt
to regulate e-mail activity.

While acknowledging that Judge North had no choice but to rule in the state=
’s
favor considering the supreme court’s decision,
Crandall seems resolved to many more appeals. "Ultimately, the federal
courts will decide," Crandall says.

Mozena also would like to see federal involvement.

There are currently 26 states with som=
e form
of anti-spam legislation, though Mozena says on=
ly the
laws in Washington, California and Virginia have any teeth. The laws in most
other states "don’t have any real value to customers," he says. <=
/span>

For example, in Nevada, the first stat=
e to
enact anti-spam legislation, the onus is on the consumer to ask to be remov=
ed
from a spammer’s list. Senders of bulk e-mail also must label their e-mails=
as
advertisements and provide opt-out instructions. Other states, such as
Wisconsin, have statutes that only require the addition of "adult
advertisement" language if the message contains obscene or sexually
explicit material.

Although pleased with the outcome of t=
he Heckel case, Mozena’s gro=
up is
unsatisfied. "Our concern is that absent a federal law, we’re going to=
end
up with 50 different state laws."

Meanwhile, the Washington attorney gen=
eral’s
office has been empowered by the state supreme court to continue using the
anti-spam law to pursue offenders. The office already has sued another alle=
ged
spammer, this one from Minneapolis. Several others are under investigation.=

Senior Assistant Attorney General Owen F. Clarke Jr. says there is more to
come. "We hope this sends a message to Internet e-mail spammers anywhe=
re
that Washington has this law and that the state is going to enforce this
law."